Workload deluge causing spike in prosecutions being tackled by defence lawyers: Manitoba Crown attorney union
Manitoba's justice minister says the rise due to more awareness of possible conflicts of interest
The number of cases where defence lawyers are being asked to prosecute alleged crimes is on the rise, and the union for Manitoba's Crown attorneys argues the government is trying to hide the fact there are not enough prosecutors to handle workload demands.
Data provided by the provincial government shows from 2021 to July 2025, 78 criminal cases and 19 provincial inquests have been outsourced from the Crown's office and prosecuted by private bar lawyers, costing the government more than $674,000.
The majority of the criminal cases — more than 70 per cent — were outsourced in the last two years.
Manitoba Justice Minister Matt Wiebe said the increase has nothing to do with a lack of Crown attorneys in the province or workload.
But Michael Desautels, a senior Crown prosecutor and vice-president of the Manitoba Association of Crown Attorneys, disputes that.
"It's dancing on the head of a needle," he said. "The reality is we need people and we need bodies in the regions, we need people to do the cases, to analyze the evidence."
The data shows the number of outsourced criminal cases grew from three in 2021 to 28 so far this year.
Wiebe said the increased outsourcing comes down to logistics — for example, a Crown taking maternity leave. He also said there is now more awareness around what could be seen as a conflict of interest between the Crown's office and people connected to the crimes they prosecute.
Only 14 criminal cases outsourced from workload: province
Hiring a special prosecutor when there is a perceived conflict of interest isn't new to Manitoba's justice system.
Defence lawyer Marty Minuk led the prosecution in 2007 against Derek Harvey-Zenk, the Winnipeg police officer accused of drunk driving in connection with the crash that killed Crystal Taman.
A case could be farmed out because a Crown attorney is the victim or a witness, or it could happen when a police officer is a victim or the accused, according to a spokesperson for Manitoba Justice.
A conflict can also be determined if the relative of a Crown, judge or prosecution service employee has a connection to the case.
The current policy on hiring independent counsel, written in 2012, is discretionary and only states it "should be considered" in these types of cases.
Government data shows 14 of the 78 cases were outsourced because of a workload issue, while the remainder were related to an undisclosed conflict. The kind of cases outsourced due to workload include charges of assault, weapons possession, fraud, theft and arson.
Brandon Trask, an associate professor at the University of Manitoba's faculty of law, called it "problematic" that the government is turning to defence lawyers to address staffing shortages.
He said it is important for victims and members of the public to have a clear explanation as to why a case is being outsourced.
"It is really important for the public to see, 'this is how the sausage is made,'" he said.
"There could be great reasons for it [outsourcing], but if nobody knows those reasons, are they really all that great?"
A former Crown attorney, Trask also stressed the importance of private bar lawyers, retained to act as prosecutors, receiving additional prosecutions-focused training so that they are "up-to-speed" on issues that are specific to the role of the Crown.
Reason for conflict not always disclosed in court
CBC reporters reviewed several cases, including sexual assaults, that were labelled as a conflict and where the prosecution was being led by a criminal defence lawyer.
In some cases the reason was clear, such as a sexual assault charge where two Crown attorneys were witnesses.
In other cases, there was no apparent reason, and the fact a contracted prosecutor was being used was not disclosed in court.
Manitoba's executive director of prosecution services, Michele Jules, said that a case such a sexual assault would never be outsourced for a workload issue.
"Nothing like child abuse, nothing that would require that sort of enhanced expertise, would go out," she said about the decision making that goes behind farming out cases.
CBC asked the government to provide more detail about what the type of conflict applied to each case but was told that couldn't be disclosed due to privacy reasons.
Desautels says there needs to be more transparency in this process. The current policy does not address circumstances where a prosecutor is being used for a workload issue.
"Justice is best served in the light of day," he said.
He also argues the victim and public should know when a private bar lawyer is being used and why that decision was made.
The best option when a conflict is identified is to bring in a Crown from another office, said Desautels.
Crowns have better training and more experience compared to defence lawyers who spend the majority of their time on the other side of prosecutions, he said.
"None of it should go to the private bar," he said.
"If we're going to have outside counsel doing work, it should be people who are prosecutors, who understand those policies, who understand the law, who have expertise in presenting these cases, and have the background and knowledge to do them effectively."
Ongoing grievance between union and government
During the same period where outsourcing has increased, the union for Crown attorneys filed a grievance with the province to address what they call "dangerously heavy caseloads."
Filed in 2023, it came after Crowns said they were burning out, losing prosecutors to other provinces and dealing with more complex cases.
This grievance is why the minister won't blame the outsourcing on workload, says Desautels.
"He can give it whatever name he wants, but the reality is it is all still a workload problem. And I think calling it anything other than that is disingenuous," he said.
Despite hiring 20 additional prosecutors in the last year, 15 other Crowns have left the office, and there are still 13 vacancies, Desautels said. The justice minister said eight more Crown attorneys were hired in July.
"The workload is getting heavier and heavier and the burden is getting heavier," Desautels said.
"We are not gaining as many people as we need to be gaining in the office."
19 provincial inquests outsourced since 2021
Meanwhile, the outsourcing of provincial inquests began in 2021, during the COVID-19 pandemic and under the weight of a heavy court backlog.
A provincial inquest is a court hearing called by the Chief Medical Examiner. They are mandatory when someone is killed by police, or dies in custody or at a correctional institution.
The role of the Crown is to marshal evidence about the facts surrounding the death for a provincial court judge in a non-adversarial forum. The judge's role is to make recommendations to help prevent future deaths of a similar nature.
But because of the Crown office's connection to the investigation into these deaths, some inquests are being outsourced to be more sensitive to families, Jules said.
"We want to bolster the confidence in the process," said Jules.
She said, for example, the family of 16-year-old Eishia Hudson were concerned about the Crown's office role in deciding not to press charges after she was killed by Winnipeg police in 2020.
It's a point echoed by Wiebe, who said they are "listening to families."
Desautels says this isn't about families, but "100 per cent" a workload issue, due to the huge undertaking and time required to lead an inquest.
"It's the first and easiest thing to take out of the office," he said.
Independent counsel policy under review
Justice Minister Wiebe said the number of cases being farmed out is only a small fraction of the some 150,000 cases the service prosecuted in the last four years.
The private bar lawyers being hired are "some of the best in the province," he said.
"We have full confidence in the work that they do and the public should as well."
The current policy for hiring outside counsel has been in place since 2012, but prosecution services officials say it is out of date and admit it's not being fully followed.
The policy says that when a lawyer from outside the Crown's office is hired, the terms of reference in which they were retained is supposed to be recorded and publicly available upon request.
This is to "ensure a transparent process and public accountability" when hiring outside counsel, according to the policy.
"That's never been done in the time that I've been here," said Jules, who has led prosecution services since 2017.
Instead, she said there is a general retainer agreement that is signed by defence lawyers and used by the department.
Previously, it was obvious why they were sending a case out, but now they are taking a more "general determination" of conflict, she said.
"The policy should be updated because it certainly doesn't reflect current practice," she said.
A dozen of these retainers were provided by the justice department to CBC. They are all nearly identical and are addressed to each lawyer, confirming they have been retained to conduct prosecutions, inquests and provide opinions for the province on a "case-by-case basis."
The retainer notes that victim services will be available to help the lawyers communicate with victims and their families. It also says they expect the lawyer to take any training offered by the department on updates to Manitoba's Victims' Bill of Rights. The hourly rate for each lawyer was redacted.
Wiebe said the policy is under review and is a priority, but he did not offer a timeline for when it would be completed.
"We're working hard to make sure that it fits and that it's appropriate," he said.
The grievance filed by the union is scheduled to be heard by an arbitrator in October.
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